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MLK’s Legacy and The Cutting Edge of the 2015 Labor Movement

It is common knowledge that the sustained political activism of Martin Luther King, Jr. over the decade leading up to the passage of the Civil Rights Act of 1964 (CRA) were crucial to its passage . Perhaps somewhat less well-known is that the Act created the Equal Employment Opportunity Commission (EEOC), or that about 12,000 to 20,000 federal civil cases are filed each year alleging employment discrimination in violation of Title VII of the CRA.

These facts alone reveal why King left an indelible mark on our nation’s labor laws. With the passage of the CRA, it became illegal for employers to discriminate against employees on the basis of race, color, religion, sex, or (later) age.

Most people also do not know that Dr. King was extremely active in defense of a different law, the National Labor Relations Act (NLRA), which established the right of all workers to form unions and bargain collectively with their employers regarding their working conditions and wages. King spent much of his time joining, speaking to, and leading labor actions; in fact, this is what he was doing in Memphis when he was killed.

(Most people also probably do not know that the United Nations Universal Declaration of Human Rights states that “Everyone has the right to form and to join trade unions for the protection of his interests.”)

King fought for the passage of the CRA to the end, then, and he also fought for the enforcement and the motivating principles behind the NLRA. The CRA set up a vibrant array of regulations and legal institutions for enforcing them. The NLRA set up the NLRB, which exists to protect workers’ rights to organize by enforcing the NLRA, but the NLRB’s regulations and legal institutions are far less effective than those of the CRA. No employer can afford to ignore actions taken against them by the EEOC, but the NLRA “gives businesses a strong incentive to ignore it.” In fact, labor lawyer Thomas Geoghegan has written that an employer would have to be “what economists call an ‘irrational firm’ ” to voluntarily obey the NLRA, given the weakness of its enforcement mechanisms, since the price of ignoring it is minimal.

To strengthen the NLRA, two U.S. Congressmen, both following in Dr. King’s footsteps and acting on the same reasons that animated his efforts, proposed the Employee Empowerment Act in July 2014. The purpose of the act is to make the right of workers to organize a civil right, with the same legal status as the rights protected by the CRA of 1964.

Currently, the only remedies available to people whose employers violate their rights under the NLRA are (i) recovery of back pay, (ii) reinstatement. Beyond this, the NLRB can collect some regulatory damages, impose cease and desist orders regarding anti-union policies or actions, and so on. Complainants are also limited in two other key ways: (iii) they cannot pursue their claims independently, but must rely on the NLRB to pursue it on their behalf, and (iv) they are not offered the opportunity to seek jury trials or compel witness testimony.

All of these things are different for complaints brought under the CRA: an employee whose case succeeds can recover back pay, compensatory damages, punitive damages up to $300,000, attorneys’ fees, and under some circumstances liquidated damages if the alleged violations have been shown to be willful. Generally, then, successful plaintiffs in CRA cases stand to recover much more from defendants and, because of this, companies have reason to take violations of the CRA seriously.

The Employment Empowerment Act stands little chance of passage in the short term, especially in the hands of a Republican congress. But it’s a good idea, and it’s something we ought to do.

If you believe your legal rights have been denied by your employer, please contact The Harman Firm, LLP.

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